De Marco v Power [2020] QDC 186

DISTRICT COURT OF QUEENSLAND CITATION: De Marco v Power [2020] QDC 186 PARTIES: ROBERT DE MARCO (plaintiff) v MICHAEL POWER (first defendant) and DENISE POWER (second defendant) and DE MARCO CONSTRUCTIONS PTY LTD ACN 010 532 475 (defendant by counterclaim) FILE NO/S: 794/19 DIVISION: Civil PROCEEDING: Application DELIVERED ON: 6 August 2020 DELIVERED AT: Brisbane HEARING DATE: 25 June 2020 JUDGE: Barlow QC DCJ ORDER: Judgment for the defendants on the plaintiff’s claim. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT – WHEN GRANTED OR REFUSED AND CONDITIONS – the plaintiff claims on the basis of two substantive causes of action and an estoppel – whether the plaintiff has no real prospect of success in his claim – the defendants’ counterclaim raises many of the factual issues also relevant to the claim – whether there is no need for a trial of the claim CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – the alleged agreement was not signed by on -- 1 of 12 -- 2 or behalf of the plaintiff or defendants – whether it had no effect and consequently is unenforceable CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – REMUNERATION – the plaintiff claims that, if agreement is not enforceable, he is entitled to fair and reasonable payment for the value of his services – when a claim on a quantum meruit arises – whether the claim is statute barred LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – timing of the plaintiff’s entitlement for payment of services is in dispute – whether the claim is statute barred Building and Construction Industry Payments Act 2004 (Qld) s 12, s 15, s 17A and sch 2 Domestic Building Contracts Act 2000 (Qld) s 30 Limitation of Actions Act 1974 (Qld) s 10, s 42 Uniform Civil Procedure Rules 1999 (Qld) r 293 Coshott v Lenin [2007] NSWCA 153, applied Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, applied Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219, distinguished COUNSEL: M Campbell (solicitor) for the plaintiff (respondent) BWJ Kidston for the defendants (applicants) SOLICITORS: Crouch & Lyndon Lawyers for the plaintiff James Varitimos for the defendants [1] This is an application for summary judgment brought by the defendants against the plaintiff. [2] The application is brought under rule 293 of the Uniform Civil Procedure Rules 1999. The first question under that rule is whether the plaintiff has no real prospect of succeeding on all or part of his claim. That means real prospects as opposed to fanciful prospects.1 That question can only be met if I consider that there is a high degree of certainty about the ultimate outcome of the proceeding if it were to go to trial in the ordinary way.2 1 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, particularly at [11]-[13]. 2 Agar v Hyde (2000) 201 CLR 552, 575-576; Coldham-Fussell v Commissioner of Taxation [2011] QCA 47, [102]. -- 2 of 12 -- 3 [3] The second question under rule 293 is whether there is no need for a trial of the relevant claim. Despite a plaintiff having no real prospect of success, based on the evidence available at the hearing of the summary judgment application there may be reasons for the court to consider that there should be a trial in any event. [4] Both of those tests must be satisfied for the defendants to succeed in the application. The application should be refused if the court is satisfied that there are circumstances that ought to be investigated, notwithstanding that the plaintiff cannot identify a specific issue which ought to be tried. The onus is on the defendants to satisfy the court of those two requirements, and only when a prima facie entitlement to summary judgment has been established does the evidentiary burden shift to the plaintiff.3 [5] The power to order summary judgment must be exercised with great care and only if it is clear that there is no real question to be tried.4 [6] The plaintiff commenced this proceeding on 6 March 2019. His claims, for a little over $400,000, are based on two substantive causes of action and an estoppel associated with each of the principal claims. In November 2010, the defendants and the defendant by counterclaim (to which I shall refer as ‘the company’) entered into a contract for the company to build a residential house on the defendants’ land. The plaintiff was the director of the company. The plaintiff claims that, on 26 July 2011, he and the defendants agreed that he would provide project management services for the remainder of building project, for which he could charge an hourly rate for his time. He pleads that that agreement was partly oral (being a conversation between him and one or both of the defendants) and partly in writing (being minutes of a meeting on 26 July 2011 and a series of emails and text messages exchanged between the parties between 16 June 2011 and January 20135). Notwithstanding that pleading, the plaintiff’s solicitor, Ms Campbell, contended that the emails and text messages referred to did not form the written part of the existing contract, but merely demonstrated that the parties put the contract into effect. In that case, it is not clear to me what, other than the minutes of a meeting on 26 July 2011, is alleged to constitute the written part of the contract. Those minutes do not appear to contain anything capable of constituting a contract or contractual term. So far as I can see, there is no mention of project management at all. The same could be said about each of the emails and text messages, if they were alleged to form part of the contract. Nothing in them is contractual in nature. [7] The plaintiff alleges that he provided those services “from in or about July 2011 until December 2012.” He says that, although the defendants paid the company under its contract and the defendants and the company released each other from any further claims, he was never paid for his services under the project management agreement. He contends that he provided to the defendants an invoice for that claim on 6 March 2013. [8] In the alternative to the contract claim, the plaintiff alleges that he provided project management services to the defendants, who accepted the benefit of the services, and he is entitled to be paid the fair and reasonable value of those services (that is, he claims on the basis of a quantum meruit). 3 Queensland Pork Proprietary Limited v Lott [2003] QCA 271, [41]. 4 Fancourt v Mercantile Credits (1983) 154 CLR 87, 99; Agar v Hyde, [57]. 5 Further amended statement of claim, paragraph 16. -- 3 of 12 -- 4 [9] The plaintiff also claims that, as a result of certain representations allegedly made by the defendants to him, on which he relied in providing the project management services, the defendants are estopped from denying the existence of the project management agreement and that he is owed the amount claimed under that agreement, or that he is owed a fair and reasonable amount for his services. [10] The defendants contend that each of those claims should be dismissed summarily. They deny that they made the alleged project management agreement and submit that the conversation and documents that are alleged to constitute the agreement cannot, on their face, amount to an agreement in the alleged terms or at all. Alternatively, they contend that, if such an agreement was made:6 (a) it was an agreement to provide “domestic building work” within the meaning of that expression in the Domestic Building Contracts Act 2000 (DBCA);7 (b) it was therefore a “regulated contract” under the DBCA; (c) it was not signed by or on behalf of the plaintiff or the defendants; and (d) therefore, by the operation of s 30 of the DBCA, it had no effect and consequently is unenforceable; (e) in any event, the contractual claim is statute barred under s 10 of the Limitation of Actions Act 1974 (LAA) because the services were provided by December 2012 and therefore any obligation of the defendants to pay the plaintiff arose by then, or within 14, 21 or 30 days of the provision of the last services in December 2012, and the proceeding was not commenced until 6 March 2019. [11] As to the claim based on a quantum meruit, the defendants contend that it is clearly statute barred under s 10 of the LAA, because it is a claim founded on quasi-contract (within the meaning of that term in the LAA), for which the cause of action arose when the services were allegedly provided, which was in or before December 2012.8 [12] The plaintiff submits that summary judgment should not be granted because there are multiple factual and legal issues that need to be determined by the court after a trial. In particular: (a) the contractual claim is based on an agreement that is alleged to be partly oral, about which substantial evidence will be needed; (b) the alleged agreement is not unenforceable under the DBCA; (c) there will need to be substantial evidence about the services provided by the plaintiff and their value; 6 As to the DBCA, in paragraphs 24(b)(i), (ii), (iii) & (iv) and, as to the LAA, in paragraphs 34A to 34G of the amended defence. 7 The DBCA was repealed on 1 July 2015, by s 79 of the Queensland Building and Construction Commission and Other Legislation Amendment Act 2014, but obviously applied at the time of the relevant events. The parties appear to agree that it would apply to this agreement as it was allegedly made and the services were allegedly performed while the Act operated. I proceed on that basis without exploring the legislative history of the Act and any transitional provisions. 8 Amended defence, paragraphs 34A to 34F and 34H. -- 4 of 12 -- 5 (d) the plaintiff’s cause of action arose on 6 or 8 March 2013, when he claimed the moneys owed to him and it became obvious that the defendants would not pay him, so the action is within time; (e) alternatively, there will need to be evidence and findings of fact relevant to when the respective causes of action arose, that will be relevant to the defences under the LAA, so the court cannot be satisfied that the limitation period had expired before 6 March 2019; (f) substantial legal issues will need to be decided in the context of the factual findings; and (g) in all the circumstances, the plaintiff should not be deprived of the opportunity to make his case at a trial. [13] I shall deal first with the plaintiff’s contractual claim. [14] The defendants’ counsel submitted that the matters that are pleaded as constituting the alleged agreement cannot amount to such an agreement and the evidence does not demonstrate anything that could remotely constitute such an agreement. Mr Kidston did not press this point in great detail, but he informed me that the plaintiff had not given any particulars of the conversation that he alleges constituted the oral part and the documents referred to in the statement of claim as constituting the written part do not contain anything that could amount to an agreement or its terms. [15] No particulars of the conversation have been filed. The plaintiff swore an affidavit in which he did not give any details of any such conversation. He barely referred to any conversation, saying only: I commenced undertaking the [project management] role following confirmation of discussions I was informed had taken place between Mr Gary Banham (who was the Architect and Project Manager) and the First Defendant. I had and continue to have no reason to question the information provided to me, which I verily believe was and is true about my taking over the project management role.”9 [16] That is the sum total of the evidence of the alleged conversation. In addition, Mr De Marco exhibited to his affidavit documents that he described as copies of “emails and texts which demonstrate that I was undertaking a project management role in my personal capacity, separate to the construction being undertaken by the Company.”10 The exhibited documents do not comprise all (indeed, many) of the documents that are alleged, in the statement of claim, to “evidence” the alleged agreement insofar as it was in writing. On their face, none of the documents exhibited to Mr De Marco’s affidavit could constitute part of the alleged agreement. Nor do they demonstrate, by the parties’ conduct after the alleged contract was made, that there was such a contract.11 They are not consistent only with a separate project management contract between the plaintiff and the defendant. They are equally (if not more) consistent with the plaintiff fulfilling his obligations to assist with variations, for which the company was entitled to charge an hourly rate for his time. (The company did in fact charge for such time.) 9 Affidavit of Robert De Marco filed 24 June 2020, [10]. 10 Affidavit of Mr De Marco, [9]. 11 As in County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, [21] - [27], [161]-[165]. -- 5 of 12 -- 6 [17] Therefore, in my view, having regard to the conversation and the documents pleaded as constituting the agreement and the absence of any substantive evidence of the agreement, I cannot see that the plaintiff has any real prospect of success in proving the alleged agreement. [18] The second issue is whether, if the alleged agreement was made, it is unenforceable because of s 30 of the DBCA. That section provided: A regulated contract has effect only if it is signed by the building contractor and building owner (or their authorised agents). [19] The terms referred to in that section were defined elsewhere in the DBCA. Relevantly: • a regulated contract was a domestic building contract for which the contract price was more than the regulated amount;12 • a domestic building contract was a contract to carry out domestic building work;13 and • domestic building work was the erection or construction of a detached dwelling and included work (associated work) associated with the erection or construction of a detached dwelling.14 [20] The defendants pleaded15 that, if it is found that the alleged project management agreement was made, the agreement was to undertake domestic building work, was a regulated contract, was not signed by or on behalf of the plaintiff or the defendants and consequently did not have effect and was unenforceable by operation of s 30 of the DBCA. [21] In his reply, the plaintiff admitted that the agreement was to undertake domestic building work, was a regulated contract and was not signed by or on behalf of the plaintiff or the defendants, but denied the allegations that it was unenforceable by operation of s 30 “as it is wrong in law”.16 [22] There is therefore no dispute that, if the agreement alleged by the plaintiff was made, it was a domestic building contract. Although the plaintiff’s solicitor did not concede that it would have been a regulated contract that had not been signed by the parties, it is clear that it would have been a regulated contract and the evidence discloses that it was not signed at all. The only issue is whether these facts mean that, because of s 30, it is unenforceable by the plaintiff. [23] The defendants submitted that the clear effect of s 30 is that the alleged contract is unenforceable. That means that the plaintiff cannot succeed on his claim for payment 12 Section 9. The regulated amount, I was told, was $3,300. 13 Section 7(1)(a). 14 Section 8(1)(a) and (3)(a). There is no suggestion that the plaintiffs’ house was not a detached dwelling. 15 Amended defence, paragraph 24(b). 16 In paragraphs 24(b)(i), (ii) and (iii) of the reply, the plaintiff admitted the first sub-paragraph of paragraph 24(b) of the amended defence three times. I consider (although the plaintiff’s solicitor did not concede) that that constituted simple typographical errors and the plaintiff intended to admit the first three allegations in paragraph 24(b) of the amended defence. Alternatively, to the extent that the defendants’ allegations constituted allegations of fact, the plaintiff’s failure to respond to the second and third allegations would constitute a deemed admission (although not of the allegations of law). But in any event I will consider whether the defendants’ allegations are correct. -- 6 of 12 -- 7 under that contract, as to enter judgment for payment of a sum that became payable under the contract would be to enforce the contract. Not only is this clear on the wording of the section, but it has also been held to have that effect on several occasions in the Queensland Civil and Administrative Tribunal and its predecessor, the Commercial and Consumer Tribunal.17 [24] The plaintiff submitted that the agreement is not unenforceable, relying on the decision of the Court of Appeal in Nichols v Earth Spirit Home Pty Ltd.18 In that case, the Court considered s 67G of the Building and Construction Commission Act 1991, which provides that a building contractor commits an offence if it enters into a building contract that is not in writing. The appellant submitted that the effect of the section was that an oral building contract was void or unenforceable. The Court held that that was not correct, because the Act did not provide any consequence other than the commission of an offence for a failure to reduce a building contract to writing. That was supported by s 67E, which relevantly provides that if, by entering into a building contract, a party to that contract commits an offence, that fact does not have the effect of making the contract void or voidable.19 [25] The plaintiff’s solicitor submitted that the provision there considered is analogous to s 30 of the DBCA and therefore the project management agreement in this case is not void or unenforceable. The defendants’ counsel submitted that the decision is not relevant, as it deals with a completely differently worded section. [26] I disagree with the plaintiff’s contention. There is a separate section in the DBCA that is equivalent to that referred to in Nichols: s 26 relevantly provides that a building contractor who enters into a regulated contract must ensure that the contract is in written form and it imposes a penalty for not doing so. Section 30 is clear in its separate and different intent and effect. A domestic building contract that is not signed by the parties has no effect. A contract that has no effect is not enforceable: it exists, but it has no consequences. A contract that is partly oral and partly comprises texts and emails (especially when most of those documents post-date the date on which the alleged contract was made) cannot be signed. [27] Therefore the alleged contract has no effect and the plaintiff has no real prospect of success on that part of his claim. [28] It is also arguable that the contractual claim is statute barred. In view of my conclusion above, I do not need to determine that issue. Nevertheless, the issue was argued before me and it may be helpful to consider it. [29] The plaintiff alleges that he was entitled to be paid for his services, all of which are alleged to have been provided by December 2012. He does not allege when he was due to be paid. However, in her address, Ms Campbell submitted that his cause of action arose on the date of the compromise agreement between the defendants and the company, when the plaintiff became aware of the reality that he was not going to be paid for his project management services, which he says he provided separately to the construction contract. With respect, that cannot be correct. A cause of action for debt arises when payment is due. Whether or not a plaintiff realised that he would not be 17 Counsel for the defendants referred me to Ballina Building Services Pty Ltd v Doyle [2010] QCAT 643, [33] and the cases referred to there. 18 [2015] QCA 219. 19 Nichols, [24], [25], [32]. -- 7 of 12 -- 8 paid is irrelevant to whether and when he had a cause of action. In any event, a compromise agreement was made on 21 December 2012, although a further agreement was made on 11 March 2013. The plaintiff did not depose to when he realised he would not be paid. Also, that submission appears to assume that the plaintiff was already entitled to payment before he came to the realisation that he would not be paid. So the date of his realisation is irrelevant to the date any debt was due. [30] The defendants allege that the plaintiff was required, under the alleged agreement, to make any claim for payment for services he provided under the agreement every 21 days and any claims would be payable 14 or 21 days thereafter,20 or alternatively would have been due and payable within a reasonable time (14 days or 30 days) after the claims were made. The plaintiff denies those allegations, pleading that he was entitled to issue payment claims and to be paid for them in accordance with the Building and Construction Industry Payments Act 2004 (BCIPA).21 [31] If the defendants are correct as to the terms of the agreement, then the plaintiff’s cause of action is likely to have arisen, at the latest, in January 2013 and therefore it was barred before he commenced the proceeding. [32] If the plaintiff’s allegation, relying on BCIPA, is correct, his claim may not be barred. The BCIPA relevantly provided that: (a) from each reference date under a construction contract, a person is entitled to a progress payment if the person has undertaken to carry out construction work, or to supply related goods and services, under the contract;22 (b) “reference date” means a date stated in, or worked out under, the contract as the date on which a claim for a progress payment may be made for services supplied under the contract or, if the contract does not provide for such a matter, the last day of each month in which services were supplied under the contract;23 (c) a progress payment becomes payable on the day on which the payment becomes payable under a provision to that effect or, if there is no such provision, 10 business days after a payment claim for a progress payment is made;24 (d) a payment claim must be served with the period, if any, worked out under the contract, or the period of six months after the services to which the claim relates were last supplied; and if the payment claim relates to a final payment if must be served within the later of the period provided in the contract or 28 days after the end of the last defects liability period, if any, under the contract; or six months after the complete supply of the services.25 20 This is on the assertion that his terms for payment would, impliedly, have been the same as those of the company under the building contract. 21 Amended defence, paragraphs 34B and 34C; reply and answer, paragraphs 34B and 34C. The plaintiff does not rely on any particular provisions of the BCIPA. That Act was repealed in 2018. 22 Section 12. 23 Schedule 2, dictionary. 24 Section 15. 25 Section 17A. -- 8 of 12 -- 9 [33] On these bases, the plaintiff arguably had six months from each month in which he supplied services, or from the completion of the works or the expiration of the defects liability period, within which to make a payment claim. He contends that he made a claim on 6 March 201326 and he commenced the proceeding on 6 March 2019: that is, on the last day of the limitation period. [34] In these circumstances, it is arguable that some or all of the plaintiff’s claim under the alleged agreement is not statute barred. If I had not been satisfied that the alleged agreement has not been proved to have existed and, if it does, it is not enforceable, I would not have concluded that the contractual claim was so clearly statute barred that the plaintiff had no real prospect of success on that claim. [35] The next basis for the claim is that, if the contract is not enforceable, the plaintiff is nevertheless entitled to claim the same amount on a quantum meruit. The defendants submit that such a claim is statute barred because, in a cause of action based on a quantum meruit, time begins to run from the date when the defendants received the benefit giving rise to the obligation to pay the plaintiff. That benefit is received when the services are supplied. As the services were all allegedly supplied in 2011 and 2012, that time limit expired, at the latest, in December 2018. [36] In Coshott v Lenin,27 the New South Wales Court of Appeal held that a claim based on a quantum meruit is based on a “quasi-contract”, because that is how such claims were categorised at the time that that State’s equivalent of the LAA was enacted. Although the High Court has since rejected the implied contract theory of quasi- contract that formerly underpinned such a claim, that categorisation remains relevant for the LAA. The Act: continues to speak according to its plain intent to claims, however labelled or packaged, and whatever general principles may be perceived to underlie them, which depend on the well established common law cause of action stemming from quantum meruit.28 [37] Section 10(1)(a) of the LAA provides a six year limitation period for a claim founded on simple contract or quasi-contract. Therefore, the limitation period for the plaintiff’s claim based on a quantum meruit is six years from the date of accrual of the cause of action. [38] In Coshott, the Court also held that, in such a claim, time runs from when the defendant received the benefit that gave rise to the obligation to make restitution.29 It seems logical that the defendants received the benefit of services provided when, or at the latest shortly after, the services were provided, as that is the date at which it is possible to ascertain objectively the reasonable value of the services.30 26 The defendants’ counsel notes that that claim was in fact made by the company, not the plaintiff personally, although it did include a claim for his time as project manager. 27 [2007] NSWCA 153, especially at [14]-[16]. The same conclusion was reached, in respect of s 10 of the LAA, by Jackson J in Shaft Drillers International LLC v Australian Shaft Drilling Pty Ltd [2013] QSC 79, [32]. 28 Coshott, [16]. 29 Coshott, [17]. 30 Diamandis v Wills [2015] EWHC 312, [101]. This view is also supported by the discussion on when a cause of action in unjust enrichment accrues in Goff & Jones, The Law of Restitution (9 th ed, Sweet & Maxwell, 2016), [33-11]. -- 9 of 12 -- 10 [39] The plaintiff’s cause of action based on a quantum meruit therefore arose, at the latest, in December 2012, when he provided the last of the services in respect of which he is claiming. [40] The consequence is that, as the proceeding was commenced on 6 March 2019, the plaintiff’s claim on a quantum meruit is statute barred and therefore he has no real prospect of success on that part of his claim. [41] The final basis of the plaintiff’s claim is that, from July 2011 to 12 December 2012, the defendants represented to him that he would be paid an hourly rate for providing project management services, he relied on that representation in providing the services and consequently the defendants are estopped from denying the existence of the agreement, that he is owed the money claimed under the agreement, or that he is owed a fair and reasonable amount for the services he provided. [42] Such an estoppel might be arguable in answer to the defendants’ denials of the existence of the agreement or that he provided services for which he might be entitled to remuneration, although the facts relied on as constituting the alleged representation appear unlikely to be sufficient to give rise to such an estoppel [43] But, in any event, the representation alleged and the plaintiff’s reliance on it do not go so far as to create a basis on which the defendants might be estopped from relying on their defence that the claims are statute barred (as opposed to denying the basis for the claims). Furthermore, the effect of s 30 of the DBCA is that, even if the defendants are estopped from denying the agreement and that the plaintiff is owed the sum claimed for services provided under the agreement, any such agreement or debt would nevertheless remain unenforceable. [44] In my view, the plaintiff has no real prospect of success in his claim based on estoppel. [45] My conclusion is therefore that the plaintiff has no real prospects of success on any part of his claim. [46] I must now consider whether, notwithstanding that conclusion, there is any need for a trial. [47] The defendants did not make any substantive submissions on this issue. Ms Campbell, for the plaintiff, submitted that there is a significant difference of understanding between the plaintiff and the defendants about the nature, the formation and the terms of the alleged agreement. That alone, in her submission, should be enough for the court to consider that it is not appropriate to determine these matters summarily without having the benefit of oral evidence from the parties as to the parties’ intentions as to the formation of that agreement. [48] I disagree, with respect. First, of course, the parties’ intentions are largely irrelevant (except perhaps an intention to enter into legal relations). The question whether a contract was formed is considered objectively on the evidence of what was said and done, not what the parties thought. Secondly, the plaintiff has not pleaded or deposed to any facts that could give rise to the alleged agreement. Thirdly, any agreement that had been made would have been unenforceable. Fourthly, although there may have been a need for evidence going to the plaintiff’s quantum meruit claim if it were made within time, it is so clearly statute barred time that there is no need for a trial about it. -- 10 of 12 -- 11 Fifthly, the alleged estoppel would not prevent the defendants relying on the statute of limitations to defeat the plaintiff’s claims. [49] The only basis on which I apprehend that there might be a need for a trial (although this was not contended by the plaintiff) is that the defendants make a counterclaim against the plaintiff and the company, in which they raise a number of matters arising out of the parties’ relationship under the construction contract and arising from representations that they allege the plaintiff made to them that led them to make payments to which the company was not entitled. [50] The counterclaim arises out of the same construction contract and the same relationship between the parties as are raised by the plaintiff’s claims. It seems likely that the court will have to receive evidence about much the same course of events between the parties as it might have received in respect of the plaintiff’s claims. There will clearly have to be a trial about the same, or very similar facts, even if I dismiss the plaintiff’s claim summarily. Does that mean that there is still a need for a trial of the plaintiff’s claims? [51] In my view, there is no need for a trial of the plaintiff’s claims. Although arising out of the same course of events, the counterclaim is mostly based on different representations alleged to have been made to the defendants by the plaintiff and the company. It is also based on events that occurred after the period to which the plaintiff’s claim relates.31 [52] Therefore, I am satisfied that there is no need for a trial of the plaintiff’s claims. [53] I have also considered whether, in these circumstances, I should exercise my discretion in favour of or against summary judgment. [54] Mr Kidston, for the defendants, submitted that the plaintiff’s claim is inconsistent with his actions during and after the contract, when all claims for his time, including at least some of those the subject of this claim, were made by the company controlled by him. Claims for payment were made under the contract and outside the contract, but always by the company. The company settled all its claims with the defendants, the settlement agreements being made by the plaintiff as director of the company. It ill behoves the plaintiff, in those circumstances, to make a personal claim six years after the company’s claims were settled, especially when he had never previously (that is, before commencing this proceeding) alleged that he had a separate contract with the defendants and consequently a separate claim. [55] Ms Campbell, for the plaintiff, did not really address that submission, nor whether, if I am satisfied that the elements of rule 293 have been satisfied, I should nevertheless decline to grant summary judgment. [56] Having been satisfied that those tests have been met, I see no reason why I should not grant the defendants summary judgment on the plaintiff’s claim. I agree that the plaintiff’s conduct at the relevant times seems entirely inconsistent with his claim. The very late timing and the nature of his claim are indicative that it formed in his mind long after the relevant events occurred. It appears to have no merit. 31 That is, after 6 March 2013, so that the counterclaim appears not to be statute barred, by reason of s 42 of the LAA. However, it is unnecessary for me to consider that question at this juncture. -- 11 of 12 -- 12 [57] I shall give judgment for the defendants on the plaintiff’s claims and I shall make directions for the continued conduct and the trial of the counterclaim. -- 12 of 12 --